Unconscionable Judicial Disdain for Unsophisticated Consumers and Employees' Contractual Rights? Legal and Empirical Analyses of Courts' Mandatory Arbitration Rulings and the Systematic Erosion of Procedural and Substantive Unconscionability Defenses under the Federal Arbitration Act 1800-2015
Boston University Public Interest Law Journal
Although the Consumer Financial Protection Bureau (“CFPB”) has taken steps to educate consumers about the perils of hidden and complicated arbitration provisions in contracts, these activities are not enough. Exceedingly large populations of unsophisticated employees need assistance because they are increasingly forced to arbitrate state and federal claims. Consequently, the Court's extremely harsh “federal policies” have gradually, systematically, and significantly eroded consumers and employees' ability to defend themselves in compulsive-arbitration trials.
While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. It is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high. Whatever preference for arbitration might exist, it is not served by an adhesive agreement that effectively blocks every forum for the redress of disputes, including arbitration itself. In recent years, numerous bills have been introduced in Congress to address concerns about arbitration. Enactment of any one of those proposed acts would effectively end the Supreme Court's unconscionably biased pro-arbitration policies, and allow unsophisticated employees and consumers to litigate their contractual and statutory claims in courts of law - before a jury of their peers rather than before a private arbitrator.
Willy E. Rice, Unconscionable Judicial Disdain for Unsophisticated Consumers and Employees' Contractual Rights? Legal and Empirical Analyses of Courts' Mandatory Arbitration Rulings and the Systematic Erosion of Procedural and Substantive Unconscionability Defenses under the Federal Arbitration Act 1800-2015, 25 B.U. Pub. Int. L.J. 143 (2016).